If Men Were Angels: Antonin Scalia, RIP

In Federalist 51, James Madison wrote that “if men were angels, no government would be necessary.” No public figure of his generation was more acutely aware of this principle than Antonin Scalia, who during his nearly three decades on the Supreme Court, espoused the idea of judicial restraint, as did the American Founders, that individuals and society require definite laws for the preservation of order and justice.

Through his humble view of human nature and belief in the limits of the law, Justice Scalia truly ranks among the greats in American legal history. Like Joseph Story and James Kent before him, he acutely understood that adherence to the rule of law is the hallmark of a civilized people. He was the law’s faithful servant and custodian, and in contrast his more activist colleagues, he never sought to be its master or king.

Justice Scalia’s view of American constitutionalism is well known: He was an originalist. He believed in the primacy of the language of the law, but only in the context of the time in which a particular law was drafted. Time did not magically alter the substantive meaning of the Constitution, a statute, or a regulation, and for that reason, context was always key.

For example, in his majority opinion in District of Columbia v. Heller, Justice Scalia forcefully defended the idea that the Second Amendment provides for an individual right to bear arms. Beginning with the text, as he always did, Justice Scalia did not parse logic: The language of the Second Amendment was clear, and despite a century’s worth of unfounded assertions by federal judges that the right to bear arms only applied to formally organized militias, that right belonged to individual citizens.

Justice Scalia firmly believed in federalism and the separation of powers. Each part of the federal government had its role to play, as did the individual states, and it was not for the judiciary to second-guess the wisdom of the co-equal, elected branches. In particular, he did not view the Supreme Court as a House of Lords or a super-legislature that could opine on the wisdom of a particular public policy. The judiciary’s powers were limited to interpreting laws, not making them. This was his steadfast rule.

Although the distinction between making and interpreting law is often blurred, Justice Scalia believed that judicial restraint demanded the Court interfere as little as possible in the democratic process. He believed that responsible jurists were governed by prudence and self-restraint. If a law is clear on its face, it should be construed by the Court to reflect that clarity. Where a law is opaque, the judge is required to construe it as closely as possible with respect to the plain meaning of the text in the context of when it was written. By this approach, Justice Scalia showed he was no activist, ideologue, or party hack. He was a judge.

In contrast, for Justice Scalia, belief in a so-called “living constitution” in which evolving social and political standards supplant the meaning ascribed to duly-enacted legislation without additional input from the elected branches of the government was nothing more than a vehicle to permit unelected judges to replace the meaning of a particular law with their own personal preferences. Justice Scalia understood that a “living constitution” amounted to a resounding rejection of the stability of the law and a circumvention of the democratic process. He considered it an affront to the dignity of the law.

Moreover, even his most vociferous critics admit that Justice Scalia was a brilliant writer who possessed an unrivaled legal mind. He structured every argument, crafted each phrase, and selected every word in his opinions with the skill of a poet. He was direct, clear, and elegant. For instance, in Morrison v. Olson, Justice Scalia’s wit was on full display in his solitary dissent: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing… But this wolf comes as a wolf.” And in his dissent in Caperton v. A.T. Massey Coal Co., he wrote with great wisdom: “The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed.” Indeed, it cannot, and he may have been the only justice in recent history to speak so bluntly as to the proper limits of the Court’s power.

But for all of Justice Scalia’s legal insight and his assured place in the annals of American jurisprudence, his most important legacy should be his deep faith, devotion to family, and personal example. He integrated each of these things into his life, and by doing so, had the tools to become the most important jurist of his generation. From his appointment in 1986, the U.S. Supreme Court was the Scalia Court, as Justice Scalia himself served as an icon of the Court’s greatness and enduring fortitude. He was an example to us all. And while the debate about his successor began even before his funeral was planned, we all know that no matter who takes his place on the Court, Antonin Scalia is truly irreplaceable.

Requiescat in pace.

Books on the topic of this essay may be found in The Imaginative ConservativeBookstore.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility.

Share This Story, Choose Your Platform!

Glen Austin Sproviero is a commercial litigator in New York. Prior to entering private practice, he served as a federal law clerk and as a Richard M. Weaver Fellow at the University of St Andrews, Scotland. He is also a former Wilbur Fellow at the Russell Kirk Center for Cultural Renewal.

One Comment

It occurs to me that if the laws of physics were subject to the “living document” philosophy frequently applied by some to the Constitution, then gravity, & many other “laws” of physics would have been abolished a long time ago, & we would all be floating around and banging into one another! Sometimes, we just ought to leave well enough alone!

The Imaginative Conservative is sponsored by The Free Enterprise Institute (a U.S. 501(c)3 tax exempt organization). Your donation to the Institute in support of The Imaginative Conservative is tax deductible to the extent allowed by law. (Gifts may be made online or by check mailed to the Institute at 9600 Long Point Rd., Suite 300, Houston, TX, 77055.)